Blackman v. Marsh et al

Filing 13

ORDER denying 2 Motion to Proceed IFP and dismissing action without prejudice to refiling accompanied by the $400.00 filing fee signed by District Judge Anthony W. Ishii on 2/22/2017. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY BLACKMAN,

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Plaintiff,

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v.

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S. MARSH, et al.,

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Case No. 1:16-cv-01852-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA
PAUPERIS
(ECF No. 2)

Defendants.

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Plaintiff Tony Blackman (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action under 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion for leave to

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proceed in forma pauperis, filed on November 21, 2016. (ECF No. 2.)
Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a

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prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of

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the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state

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a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious

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physical injury.”1 Plaintiff has been informed in prior cases that he is subject to § 1915(g).2

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The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy

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the imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1053-

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The Court takes judicial notice of the following United States District Court Cases: (1) Blackman v. Hartwell, Case
No. 1:99-cv-05822-REC-HGB (E.D. Cal.) (dismissed on March 12, 2001, for failure to state a claim); (2) Blackman
v. Taxdhal , Case No. 1:04-cv-06389-AWI-LJO (E.D. Cal.) (dismissed on May 18, 2007, for failure to state a claim);
(3) Blackman v. Medina, Case No. C 05-05390-SI (PR) (N.D. Cal.) (dismissed on March 13, 2006 for failure to state
a claim); (4) Blackman v. Variz, Case No. C 06-06398-SI (pr) (N.D. Cal.) (dismissed on December 18, 2006 for
failure to state a claim); and (5) Blackman v. Evans, Case No. 1:06-cv-00081-GSA (E.D. Cal.) (dismissed on
February 3, 2009, for failure to state a claim).
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The Court takes judicial notice of Documents 8 and 14 in Blackman v. Clark, 1:16-cv-00797 LJO MJS (E.D. Cal.),
and Document 4 in Blackman v. Hedgpath, 1:10-cv-1393 LJO MJS (E.D. Cal.).

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55 (9th Cir. 2007). Plaintiff initiated this action while at R.J. Donovan Correctional Facility in

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San Diego, California, where he currently is housed. However, the allegations in the complaint

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concern events that occurred while Plaintiff was housed at California Substance Abuse and

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Treatment Facility in Corcoran, California. Plaintiff alleges that Defendants K. Clark, J. Zamora

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and S. Morelock failed to provide him with a written decision on his application to proceed in

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forma pauperis and a copy of his trust account statement for the past six months. Plaintiff also

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alleges that Defendants K. Clark, J. Zamora, S. Morelock, DeLaTorre, K. Curtiss and S. Marsh

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failed to provide a signed and dated written decision on his reasonable accommodation request

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for wheelchair law library access and services. Plaintiff further alleges that he was denied law

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library access and services. Plaintiff believes these actions were done to stop his civil complaint

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from being processed in federal court without payment of the filing fees in order to cover-up his

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alleged false imprisonment by the state court. (ECF No. 1.)

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Plaintiff’s complaint concerns past events at an institution where he was no longer housed

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by the time he filed his complaint. Thus, Plaintiff has not alleged any imminent danger of serious

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physical injury at the time of filing and has not satisfied the exception from the three strikes bar

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under 28 U.S.C. § 1915(g). Plaintiff must pay the $400.00 filing fee if he wishes to litigate this

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action.

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Accordingly, the Court HEREBY ORDERS that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is DENIED;

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2. This action is DISMISSED without prejudice to refiling accompanied by the $400.00

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filing fee; and
3. The Clerk of the Court is directed close this case.

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IT IS SO ORDERED.
Dated: February 22, 2017
SENIOR DISTRICT JUDGE

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